Canuto v Boyded Industries Pty Ltd

[2005] HCATrans 377

[2005] HCATrans 377

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S321 of 2004

B e t w e e n -

GRACE CANUTO

Applicant

and

BOYDED INDUSTRIES PTY LIMITED TRADING AS BOYDED PARRAMATTA

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 10.54 AM

Copyright in the High Court of Australia

MR G.B HALL:  May it please the Court, in this matter I, and with me, MR C.P LOCKE, and MR M. EAGLE, appear for the applicant.  (instructed by Velleley & Associates)

MR P.J DEAKIN, QC:  If the Court pleases, I appear for the respondent with MR D.A McLURE.  (instructed by Curwood & Partners)

McHUGH J:   Yes, Mr Hall.

MR HALL:   Your Honours, this matter relates substantially to the ability of the Court of Appeal to rehear a matter on appeal, and also to the question of contributory negligence.  Your Honour, since the development of what has been known in the Court of Appeal in New South Wales as the Shirt calculus, particularly the passages at page 47 at 146 CLR.  The Court of Appeal particularly, has been relatively aggressive in rehearing matters and the effect of what they are doing is, we would say, to eliminate virtually any question of contributory negligence because the court cuts the plaintiff off before it is said there is a breach of the duty of care. 

Your Honour, if one goes back and looks at the position before the statutory creation of the defence of contributory negligence, any negligence by a plaintiff disentitled him to a judgment.  The government of New South Wales passed a statute creating the defence, and we would submit that inadequate consideration has been given to the interplay of that statute, which evinced a legislative intention that contributory negligence by a plaintiff would not disentitle him to damages. 

Therefore, we say, in these cases where one is looking at the question of breach of duty, to look back and cut the plaintiff out before breach of duty is found, is to really cut across ‑ ‑ ‑

McHUGH J:   Those issues are important issues, and I think there may be one or more cases already in this Court, where those issues will be dealt with.  But this is not a case of a defective system.  There was no system of sitting on glass tables.  Your client just happened to sit on a glass table and you say that the employer should have put warning signs around warning against sitting on a glass table.  The Court of Appeal said that is not negligent.  What is the matter with that?

MR HALL:   Your Honour, our case was stronger that that.  We argued and succeeded with the trial judge in obtaining a finding that, had there been directions given to staff that they were not – we established a practice of staff sitting on the table.  We established that the defence witness, Mr Wild who was called, the principal witness who was there when the plaintiff was injured, the defendant’s supervisor, was not available to the defendant at the trial, but the ultimate supervisor was and he conceded that he had seen people sitting on glass tables, so we were able to establish before the trial judge a system of people sitting on glass tables.  The trial judge dealt with that, and we would submit that he developed a reasoned argument in his judgment that if there had been a system of warning staff not to sit on tables, this would not have occurred.  That is at paragraph 7 of the application book, your Honour.

McHUGH J:   I know, but after ‑ ‑ ‑

MR HALL:   It is not just a case about a notice.  It is a case about a practice, which is a practice in the system of work.

McHUGH J:   It was hardly a practice.  It was a case where Justice Santow said it was beyond reason to find an employer in breach of a duty to fail to warn against the simple act of sitting on a glass table when there were chairs readily available.  Now, that is question of fact.  What is special about this?  Let it be assumed in your favour that the decision of the Court of Appeal is wrong.  It is not a special leave case, Mr Hall.

MR HALL:   Your Honour, we would submit the way the court went about rehearing the matter in the Court of Appeal is completely wrong.  The insurer contested the trial on the basis of insurance and lost.  Then it purported to take over the right of appeal of the defendant, and we argued the case on entirely different grounds in the Court of Appeal.  No argument on the basis of Wyong and Shirt or reasonableness was advanced in the lower court.  There was no cross-examination of the witnesses on that point, no argument to the trial judge on that point.  We would submit that it is not open to the Court of Appeal to rehear a case on grounds that have not been advanced in the court below.

McHUGH J:   But did not your client concede that she knew it was dangerous to sit on glass tables?

MR HALL:   She did say that.

McHUGH J:   Well, what does a warning notice have to do with it then?  You are asking if she had been given a warning for what she knew about.

MR HALL:   Your Honour, we rely critically on the passage by the trial judge who said that this was a practice that had grown up, and if there had been warnings to staff not to do it, they would not have done it.  That is a finding of fact that was open – these are all factual questions at the end of the day.  That is a finding of fact which was open to the trial judge, which the Court of Appeal set aside without considering whether there was evidence on which that finding of fact could be made.

Furthermore, this is, we would submit, a real problem currently in the Court of Appeal.  Cases are argued on one set of issues, they come up to the Court of Appeal and currently, the Shirt calculus is given a run.  It was not raised in the court below ‑ ‑ ‑

McHUGH J:   But you have been making this argument for 30 years.  I can remember you arguing this point in Braistina; you were on the other side of the record. 

MR HALL:   Your Honour, Braistina has dogged me ever since I argued it.  I enjoyed the argument more than any case I think I have ever been in, and at the end of the day, as your Honours know - your Honour was not a member of that court, but the court found against me, and to the detriment of insurers ever since.  But this time I am for a plaintiff, your Honour, it is an entirely different situation.

Your Honour, but I do strongly press, it has to be wrong in principle that parties can go to the Court of Appeal and pluck something like the Shirt calculus from the air, which is not argued in the court below, not the subject of cross-examination.  If it had been the subject of cross-examination, we say that evidence could have been led to answer that issue.  The Court of Appeal has taken the bit in its teeth in relation to damages cases generally and is just running a new trial and it is procedurally unfair to plaintiffs.  It was very procedurally unfair in this case.  None of the authorities put to the Court of Appeal were argued in the court below, so it is an entirely new case. 

Although an insurer may be able to deny insurance in the lower court, and then exercise its right of subrogation to take over an appeal, or in this case, it appealed, it cannot, we would say, argue a new case.  All it can do is take over the right of appeal of its insured and this insured had argued none of these points in the court below, and they ought not to have been entertained ‑ ‑ ‑

McHUGH J:   Well Hampton Court v Crooks decided in 1957 says that even in a jury case, you are entitled to raise a no evidence point for the first time on appeal.

MR HALL:   But this is not a no evidence point, with respect.

McHUGH J:   I know it is not, but it is the same thing.  This is a judge ‑ ‑ ‑

MR HALL:   No, it is not.

McHUGH J:   It is a rehearing in the Court of Appeal, and the Court of Appeal says no negligence.

MR HALL:   Well, your Honour, with all due respect to Mr Justice Santow and the other judge who formed the majority, that opinion is just plucked from the air.  They do not set out why they reach that conclusion.  They just say it, whereas the trial judge did deal with it, and he advanced a reasoned argument as to why he came to the conclusion that there was a breach of duty, and they did not deal with that at all. 

Your Honour, if this is to be taken as an appeal against a jury finding, or in this case a single judge finding, on points not argued in the court below, then you have to show that it was not possible for the judge to reach the conclusion he reached on the evidence before him.  The Court of Appeal made no attempt to embark on that test.  Whether it was reasonable to have a system where the staff are warned, or whether it was reasonable to put a notice up, are really, at the end of the day, questions of fact which were for the trial judge.  It is not open to the Court of Appeal to merely say we think differently without identifying some error that the trial judge made, which they did not do in this case.

McHUGH J:   That was the view that Sir Garfield Barwick expressed in Edwards v Noble, but that view is no longer followed.  Fox v Percy, a recent decision of this Court, says it is a rehearing, and the Court of Appeal has to make up its own mind.

MR HALL:   They still have to show, we would say, that there was an error in the court below, and this they have not done.

McHUGH J:   Well, yes they say there was an error in the result.  That is all they have to show.

MR HALL:   Your Honour, we would argue that what this means in practice, is that there is a new trial on a very limited basis because the issue being litigated in the Court of Appeal is not one which was litigated in the court below, and it is procedurally very disadvantaged to plaintiffs.  It also puts, in my submission, a very unreasonable burden on a trial judge, who was expected to give a judgment therefore, embracing issues that really had not been litigated in front of him.

A civil trial is not the same as a criminal trial, where sometimes a judge is duty bound to deal with it eventually, even if it is not raised.  But in a civil trial, a trial judge has only to deal with the issues that were raised before him.  It was on those issues that the case was litigated, and reasonableness in terms of Wyong v Shirt, was not an issue in the trial, was not addressed by the plaintiff and we would submit it is procedurally, grossly unfair for the plaintiff to be faced with that and have his judgment overturned without any indication of error by the trial judge on the personal opinion of the Court of Appeal.

Your Honours, if I can just refer to Fox v Percy.  In paragraph 23 however, in Fox v Percy, the Court said that:

On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”.  On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record.

McHUGH J:   I know, but the Court of Appeal in this case had the finding of fact, among other things, of the trial judge on page 8 of the book where he said:

In view of the evidence, and in particular the plaintiff’s own concession that she knew she should not sit on a glass-topped table and that other chairs were readily available I find contributory negligence on the part of the plaintiff –

The Court of appeal went further.  They said there was not even negligence on the part of the ‑ ‑ ‑

MR HALL:   Your Honour, we would say, with respect, that that violates the statutory right to the plaintiff conferred by the statute which says that contributory negligence will not deprive her of the verdict, but will result in her damages being reduced.  That is what should have happened in this case.  It was a question of contributory negligence, which is not a question which, so to speak, absolves the defence from a duty of care.  This was a case where the defendant can see that there is owed a duty of care. 

We would submit that negligence on the part of the plaintiff cannot go to destroying the obligation created by the duty of care, particularly to an employee.  We would submit it was strongly found by the trial judge and by the dissenting judge in the Court of Appeal, Justice Beazley, that at the most this could be said was the plaintiff was guilty of inattentiveness in terms of the case your Honour flung in my face a little earlier, Bankstown Foundry v Braistina.

McHUGH J:   I noticed you relied on it before the trial judge.

MR HALL:   Yes, your Honour.  I did not do the trial, your Honour, my learned junior did.  I must say, having it cited against me on numerous occasions ‑ ‑ ‑

McHUGH J:   Yes.

MR HALL:   Well, those are our submissions, your Honour.

McHUGH J:   Yes, thank you, Mr Hall.  We need not hear you, Mr Deakin.

The Court is of the opinion that a grant of special leave to appeal in this case would mean that leave would be granted in a case which has no reasonable prospects of success.  Accordingly, the application for special leave to appeal is refused.  The application is dismissed with costs.

The Court will now adjourn to reconstitute.

AT 11.13 AM THE MATTER WAS CONCLUDED